State v. Ellis

Decision Date05 June 2009
Docket NumberNo. DA 08-0149.,DA 08-0149.
Citation210 P.3d 144,351 Mont. 95,2009 MT 192
PartiesSTATE of Montana, Plaintiff and Appellant, v. William Bruce ELLIS, Jr., Defendant and Appellee.
CourtMontana Supreme Court

For Appellant: Steve Bullock, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Robert M. McCarthy, Silver Bow County Attorney, Samm Cox (argued), Deputy County Attorney, Butte, Montana.

For Appellee: Gregory Jackson, Jackson Law Firm, P.C., Chad Wright (argued), Hooks & Wright, P.C., Helena, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 The State appeals an order of the District Court for the Second Judicial District, Silver Bow County, granting Dr. William Ellis's motion to suppress all of the evidence obtained from a search of his residence after the police received a report of sexual assault upon his thirteen-year-old daughter. We affirm in part, reverse in part and remand for further proceedings consistent with this Opinion.

¶ 2 We address the following issue on appeal: Whether the District Court erred in granting Ellis's Motion to Suppress Evidence.

Factual and Procedural Background

¶ 3 Just before 1:00 p.m. on October 5, 2006, Officer Dan Murphy, a patrol officer with the Butte-Silver Bow Police Department, was dispatched to a Butte residence to respond to a report of sexual assault on a young woman. He was not informed at that time that the victim was a juvenile. Officer Murphy was dressed in his police uniform and he arrived in his patrol car which he parked in front of the residence. When he arrived at the residence, the victim, S.S., met him at the door. She was crying and her "eyes were very red and puffy." Officer Murphy later testified that S.S. was obviously a teenager, but he could not tell whether she was over or under sixteen years of age. In fact, she was only thirteen years old.

¶ 4 S.S. invited Officer Murphy into the living room of the residence and they sat down on the couch. Officer Murphy testified that although S.S. initially was so upset she was unable to speak, she eventually told Officer Murphy that her father, Dr. William Ellis, had touched her inappropriately the previous evening. According to the Application for Leave to File Information, S.S. told Officer Murphy that she had been sick during the week leading up to the incident and that two nights before this, Ellis had given her some medication that made her feel "goofy." S.S. said that before she went to bed on the night of the alleged assault, Ellis had given her some different medication, which she described as blue and pink pills.

¶ 5 S.S. told Officer Murphy that she was in her bedroom sleeping when Ellis came into her room. Although she was very sleepy, S.S. felt Ellis pull her v-neck night shirt down to expose her breasts, and pull her pajama shorts and underwear down to her thighs. While S.S. pretended to remain asleep, she opened her eyes slightly to confirm that it was Ellis. She saw that he was wearing a t-shirt, but he was nude from the waist down. S.S. stated that Ellis masturbated while he fondled her breasts and vagina. When Ellis was finished, he pulled her night shirt back into place, pulled up her underwear and pajama shorts, covered her back up, and left the room. S.S. was uncertain whether Ellis ejaculated.

¶ 6 S.S. also told Officer Murphy that when Ellis woke S.S. up for school that morning, she told him that she was not feeling well and intended to stay home. After Ellis left the house, S.S. tried to call her grandmother and a family friend without success. She was initially reluctant to call the police, but eventually decided to do so.

¶ 7 Officer Murphy testified that when he realized he was dealing with a child sexual abuse crime, he, pursuant to protocol, asked that a detective be dispatched to the scene to follow through with the investigation. While waiting for the detective, Officer Murphy asked S.S. to show him where the alleged assault had taken place. S.S. took Officer Murphy upstairs to her bedroom, which Officer Murphy later described as "a typical girl's bedroom."

¶ 8 Officer Murphy asked S.S. what she had been wearing and S.S. retrieved her pajamas from the side of her bed. She said she was still wearing the same pair of underwear that she had been wearing during the alleged assault. S.S. tried to describe to Officer Murphy the medication that Ellis had given her. In doing so, she proceeded to a closet around the corner from her bedroom that contained various types of medication. S.S. looked through the medication, but was unable to identify exactly what she had been given. Officer Murphy testified that he did not look through the closet since he didn't know what type of pills to look for.

¶ 9 Officer Murphy and S.S. returned downstairs when Detective George Holland arrived. Detective Holland later testified that he recognized that S.S. was a juvenile and guessed that she was about the same age as his own fourteen-year-old daughter. Officer Murphy briefed Detective Holland and took him upstairs to S.S.'s bedroom while S.S. remained downstairs. Officer Murphy showed Detective Holland the bedroom, the bedding, and the pajamas that S.S. had shown him.

¶ 10 The officers returned to the living room when they heard a male voice downstairs. They found Ellis sitting next to S.S. on the couch. S.S. was visibly upset and crying. Detective Holland identified Ellis as S.S.'s father and asked that Ellis go outside with Officer Murphy. Ellis complied. Neither Detective Holland nor Officer Murphy asked Ellis for permission to search the home, and Ellis did not order the officers out of the home or voice any objections to the officers being present in the home.

¶ 11 Once outside, Ellis asked Officer Murphy what was going on. Officer Murphy told Ellis that he was not at liberty to say, but that he would transport Ellis to the police station where Detective Holland would speak with him and fill him in. Officer Murphy could not remember whether or not he handcuffed Ellis before placing him in the patrol car, but he testified that it is the general practice to do so. Detective Holland testified at the suppression hearing that, after Ellis left, S.S. told Detective Holland that Ellis had asked her what was wrong and she told Ellis that she did not want to talk to him.

¶ 12 Detective Holland took photographs of S.S.'s bedroom and began collecting evidence. While he was doing so, his Captain, Doug Conway, arrived to see if Detective Holland needed any assistance. Detective Holland and Captain Conway took possession of the sheets, comforter and blanket on S.S.'s bed, as well as her pajamas. They also had S.S. change clothes so that they could take possession of the underwear that she was wearing at the time of the alleged assault.

¶ 13 Because the Child Evaluation Center at the hospital was being renovated, Detective Holland took S.S. to the police station to speak with a trained forensic interviewer. While at the station, Detective Holland provided S.S. with a receipt for the items he seized from the home. Detective Holland also filled out a Permission to Search Form and had S.S. sign it.

¶ 14 After reviewing the forensic expert's interview with S.S., Detective Holland conducted a taped interview with Ellis. In the interview, Ellis admitted that around 10:00 p.m. the previous evening he had given S.S. a 12.5 milligram dose of Ambien CR to help her sleep. However, a drug screening performed about sixteen hours after Ellis gave S.S. the medication showed that S.S. may have ingested 50 to 60 milligrams, or four or five tablets of Ambien CR. Ellis also admitted to Detective Holland that he went into S.S.'s bedroom to check on her, but he denied any type of sexual contact.

¶ 15 Ellis told Detective Holland that S.S. had been disappearing after school and at night, and that he had caught her in numerous lies. He said that he grounded her for three-and-a-half weeks immediately before she called the police, and that her allegations against him fit her previous behavior. Some time later, after DNA evidence from the sheets taken off of S.S.'s bed revealed multiple semen samples containing Ellis's DNA, Ellis explained that the sheets must have been taken from the dirty clothes hamper where they could have been mixed with his own sheets that contained his semen.

¶ 16 On September 11, 2007, the State filed an Information charging Ellis with sexual assault, a felony, in violation of § 45-5-502(1) and (3), MCA (2005). Thereafter, Ellis filed a motion to suppress wherein he contended that since S.S. was less than sixteen years old, she lacked the capacity to consent to a search of Ellis's residence or her own bedroom.1 Thus, Ellis argued that the seizure of S.S.'s bedding, pajamas and underwear violated both the United States and Montana Constitutions because it was done without his consent or a search warrant. In its brief opposing Ellis's motion to suppress, the State argued that in a case such as this where the child granting them entrance to the home may be the victim of a sexual assault, a warrant was not necessary.

¶ 17 A hearing on Ellis's motion was held on February 14, 2008. The State called two witnesses, Officer Murphy and Detective Holland. Ellis did not call any witnesses. At the conclusion of the hearing, the State conceded that no exigent circumstances existed in this case and that any evidence seized from searches outside S.S.'s bedroom should be suppressed. The State maintained, however, that S.S. had a constitutional right to the sanctity of her own room, and that this Court's decision in State v. Schwarz, 2006 MT 120, 332 Mont. 243, 136 P.3d 989, wherein we held that a minor lacks the capacity or the authority to consent to a search, did not apply.

¶ 18 On March 7, 2008, the District Court granted Ellis's motion to suppress all of the evidence seized from the search of his...

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